Form I-9 has expired. Now what?

You may have noticed that the Form I-9 (Employment Eligibility Verification) you are using expired as of March 31, 2016. The last time the United States Citizenship and Immigration Services (USCIS) issued a revision was three years ago. The USCIS is currently considering more proposed changes to this form, but is not quite ready to roll out the new document.

According to a post on their website last week, the USCIS has extended the effective date for the current Form I-9s until they are ready to release the new forms, probably later this spring. USCIS will provide updated information about the new version of Form I-9 as it becomes available.

It’s not too late to comment on their proposed changes if you’d like. The public may provide comments until April 27, 2016. Many of the proposed changes to Form I-9 were designed to reduce technical errors and help users complete the form on their computer. To view the proposed form and instructions and submit a comment, go to https://www.regulations.gov/ and enter 1615-0047 in the search box.

For now, employers must continue to complete Form I-9 for all newly hired employees to verify their identity and authorization to work in the U.S.

In order to keep your company compliant with this federal law, you must be diligent in the following areas:

New hires: Employers must require a fully completed Form I-9 for all new hires within three days of their first day of work. Follow the instructions on the form when gathering documentation from your new hire and be sure to fill out the form completely.

Proper storage: Form I-9s must be retained and stored in either paper, electronic, or microfilm/microfiche format. It is recommended that you securely store these forms and the copies of the documents used for verification in one file, separate from personnel files. This will allow you to present them to government officials for inspection within three days of the date on which the forms were requested, as required by law.

Proper maintenance: Employers should keep a properly completed Form I-9 for all current employees. Regular self-audits should be conducted to ensure compliance. If any forms are incorrect or incomplete make the needed corrections or additions as soon as the oversight is discovered. Do not change any dates on the form. Simply put a note with the corrected form, describing the action taken, the date it was taken and the name of the person making the correction.

Handling expired documentation: (a) Never accept expired documentation. (b) Do not allow an employee to work with an expired work-authorization document. Instead, re-verify expiring work authorization documents before they expire (see below for more details about re-verification). (c) Do NOT re-verify U.S. passports or passport cards, Permanent Resident or Resident Alien Cards, or any other List B identity document.

According to USCIS, if an employee presented a valid, current Permanent Resident Card (form I-551) for section 2 of the Form I-9 when they were hired, it is not necessary to re-verify their resident status when that card expires. Expiration of their “green card” does not revoke their permanent resident status. However, it is highly recommended that the employee renew the expired card. Without a current Permanent Resident Card, their ability to travel and to verify their eligibility to work in the U.S. is obviously jeopardized.

So when does an employer need to re-verify an employee’s eligibility to work? According to the USCIS website, “When an employee’s employment authorization or employment authorization documentation (in most cases) expires, an employer must re-verify that the employee is still authorized to work.” Employers accomplish re-verification by completing section 3 of the employee’s Form I-9. It is best to remind employees, at least 90 days before the date re-verification is required, that they will need to present documentation showing continued employment authorization on the date that their employment authorization or original documentation expires.

The easiest and quickest way to verify the eligibility of new hires is using the internet-based system called E-Verify. It is free and some states require employers to use this system. With a completed Form I-9 and the new hire’s social security number, an employer can determine eligibility within seconds. This system does not replace the legal requirement to complete and retain those I-9 forms, but it is one more (simple) way to ensure legal compliance and avoid costly mistakes.

Disclaimer:The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this Web site do not create an attorney-client relationship between East Coast Risk Management or our employment law attorney and the user or browser.